Gen. 117 117

1 Your question arises from a contro versy involving a particular planningcommission

member in

Carroll County. The question comesto us, ho wever, in i ts general form, and we should not be understood to be ad dr es si ng th e s pe ci fi c c ir cu ms ta nc es of th at co nt ro ve rs y. PUB LIC OFFI CERS

Z ONIN G AND P LANNIN G

) S TANDARDS FOR R EMOVAL OF P LANNIN G C OMMISSI ON M EMBER FOR “M ALFEA SANCE IN O FFICE ”

June 9, 1997

George A . Lahey, Esquire Carroll Count

y Attorne y

You have request ed our opini on o n the meaning of “malfeasanc e in offi ce,” as used in Art icle 66B, §3.02(a ) of the Maryland

Cod e. In parti cular, you as k whether a pl anning commissi on mem ber m ay be rem oved on th is basis o nly if th e member commits a cr ime. 1

Our opin ion is as foll ow s: “Malfeas ance in offi ce” descr ibes wrongful conduct of a public of fici al with a

direct relation to t

he pe rformance of o fficial d uties tha t substa ntially affe cts the p ublic interest. The wrongful conduct nee d not const itut e a viol ationof the crim inal l aw in o rde r to m eet th is sta nda rd.

I

Planni ng Commissi on Removal Prov isi on
Counties and municipal iti es have autho rityund erArt ic le 66B, §3.01(a) to crea te plan ning com missio ns. Th ese co mm is sio ns consistof either five or sev en m embers, a ppointed by

the loc al legis lativ e bo dy fo r fiv e-yea r term s.118 [82 O p. Att’y

Article 66B , §3.02(a) provide s the bas is for removal of planning commission membe r s: “After a p ublic hearing, m embe rs may be removed bythe loc al le gisl ative b od y f or in effic ien cy, neglect of duty , or mal feasance i n o ffice .” Sinc e its ena ctme nt in Chapter599 of the Laws of Maryl and 1933, this prov i sion
essen tially has r emained the s ame. Generally, where the power of removal is limi ted to s pecifi c reasons , the removal authori ty may not
remove for any c aus e no t so s pec ified

. Maca lu so v. West , 352 N.E.2d 382 , 385 (Ill. A pp. 1 976 ). See Stanleyv. Jones , 2 So. 2d 45, 51 (La. 1941) (removal was limited t o “misconduct in offi ce” and defendantcould not be removed formisconduct not connectedwith the office).

The General Assembly

has not defined the t erm “malfeasance in office” i n §3.02 (or

elsewhere in stat

ute, as faras we a re awa re). Its decisio n no t to define the te rm impli es an int ention t hat the words be given their ord inary and natural imp ort

. Bo ard of Trust ees v. Hughes , 340 M d. 1, 7 , 664 A.2 d 12 50 ( 199 5). See also Williams v. State , 329 Md. 1, 15, 616 A.2d 1279 (1992) (words should be gi ven their o rdinary and pop ularly understood m eaning ab sent contrary legislative intention).

II

Removal for “Malfeasance in Offi ce”

A. Purpose of Removal Statutes
The o bjec t of removalstat utes i s not t o punish the offending officer , but t o protect

and preser

ve the office andto free the pu blic of an unfit o ffic er. State v. Schroeder, 430 P.2d 304, 314 ( Kan. 1967); Raltst

on v. Showalter , 370 P.2d 408, 412 (Kan. 19 62). See State v. Jones , 407 P.2d 571, 572 (Utah 1965) (objective of re moval from office st atute s is t o provide amethod of removing from office
a public of

fici al who betrays hi s trus t in off i ce). The rationa le behindsuch statutes is the public ’s int eres t in ens uring that those hold in g pub lic office are fit. Sta te v. S chr oed er, 430 P.2d at 314

. See also Ed ward s v. Civil Service C omm ’n , 2 87 N

. W. 285, 288 (I owa 1939) (the public has a right to have as public of

ficer s persons of c har acte r, jud gm ent, a nd d iscre tion ).Gen. 117 119

2 In Mary land, “malfeasance in office” continues to b e a common lawcrime. Prosecution of the crime, however, is governed by statute. See §5-106(f)(3) of the Courts and JudicialProceed ings Ar ticle(prosecution for the commis sion of or

th e attemptto commit a criminal malfeasance shall be instituted within two years after the offense was committed). B. General Meaning of “Malfeasance”
“Malfeasance” is the doing of an actthat t

he person ought

not to do at all. State v . Carter , 200 M d. 255, 262 , 89 A.2d 586 (19 52). When an actof this nature i s perpet rated by an officer in the exercise of the duti es of his or her offi ce, or whil e acti ng under color of office, it becomes “malf

easan ce inoffi ce. ” Roll in M. Pe rkins and Ro nald N. Boyce, Cri min al Law 540 (3d ed. 1982) . At common law, “mal feasan ce in office” wa s a m isde me ano r. Hitzel berger v. State , 174 M d. 152, 160 , 197 A .2d 605 (1 938). 2

As noted in Par

t I above, Articl e 66B does not define “malfeasanc e in off

ice” or specify the conduct

that c onsti tutes “malfeasanc e in offi ce.” Nor does Maryland c ase law const rue the t er m. Th e term “misc ond uct in o ffice ,” how ever, h as be en he ld to be broad enough to e mbrace any willful“mal feas anc e in o ffic e.” Stanleyv. Jones , 2 So. 2d 45, 57 (La. 19 41); Dunca n v. State, 282 Md. 385 , 387 , 384 A.2 d 45 6 (1 978 ). The t er ms are oft en used syn on ym ou sly. See Ch ester v . State , 32 Md. App. 593, 603, 363 A.2d 605 (19 76); Co

ffey v . Sup erio r C our t, 82 P . 75, 76 (Cal. 1905). Acco rd in gl y, we thi nk it l ik el yth at th e Mar

y land c our

ts wo ul d constr ue “malfea sa nce in offi ce” in har mony with t

heir prior inter pretations of “mis conduct i n office. ”

The Court of Appeal s ha s gen erally defin ed “m iscon duct in office” as “[a ]ny unlaw ful be havio r by a pu blic officer in relation to the duties o f his office, willfulin chara cter. ” Resetar v. State Board of Ed uc., 284 M d. 537 , 561 , 399 A.2 d 22 5, cert. denied , 444 U. S. 838 (1979) (q uo ting Employment Securit y Board v. LeCates , 218 Md. 202, 208, 145 A.2 d 84 0 (1 958 )). See a lso D unca n v. Sta te , 282 Md. at 387 (“mis cond uct in o ffice ” is corrupt beha vior b y a public officer in the e xercis e of his dut ies of hi s office or while act ing und er co lor o f his office).120 [82 O p. Att’y

C. SeriousnessThreshold

Pub lic offici als shoul d not be dis missed si mply bec ause they do not achi ev e perfe ction in every m inute d etail of b ureau cratic ope rati on and should not be threatened with dismissal for honest mistakes. In re Shoaf

, 88 A.2d 871, 873 (Pa. 1952) . A “mere err or of judg men t” is not p unish able a s ma lfeasa nce o r misc ond uct in office. Ch ester v . State , 32 Md. App. at 60 6 (c itation omitted). Therefore, an initialinquiry must be made into the seriousness of the official’s conduct. The reason for removalmust be one restricted to condu ct of a subst antia l natur e direc tly affecti ng the ri ghts an d inter ests o f the pub lic. 67 C.J .S. Officers §12 0 (1 978 ).

Not every

techni cal vi olati on of a stat ute or of an offic ial duty wi ll justif

y a rem ova l. Bate ma n v. Sta te , 14 N.E.2d 1007, 10 1 1 (Ind. 1938) (an offi cer shoul d not be removed from of fice for in consequen tialmatte rs). Instea d, there mu st be a w illful inten t to do wrong. “The court s have prev ented the common law crime of misconduct

in of fi ce from becoming a means for oppressi ve prosecut ions premised upon v ague m oral pri nci ples by making willfulness an ele men t of the crime . Will fulness

... means, i n the context of malfeasance ar i sing o ut of th e brea ch of duty of p ublic
conc ern, an ev ilpur

pose or me nta l c ulp abi li ty .” 4 Eu gen e M cQ uillin , Municipal Corporations §12.237 (3d ed. 19 92).

Serious misconduct that falls s hort of the commissi on of a
cr ime but tha t rela tes t o an offici al’s duties may be grounds for removal und er a civ il rem ova l statu te. Bro yles v. S tate , 341 S.W.2d 724, 727 (Te nn. 1 960 ). See a lso Je nner v. Board of Trustees of Village of East Troy , 389 F. Supp. 430, 431 (D . Wis. 1974) (cause
su ffici ent to justify rem oval m ay exist w here c ond uct affects adm inis tration of o ffice even thou gh co ndu ct ma y not con sti tut e violation of anylaw ). Resetar and severalof the other cases discuss ed in Pa rt IID b elow illustrate th e app lication o f this general rule.

D. Relation to Duties of Office

Once it is es tabli she d th at the con duc t is se riou s, a d etermi nationmust be made whether t he conduct r elat es to th e pub lic official’s dut ies. Discussi ng Utah’s re moval stat ute, the Utah Supr eme Court st ated that the words “in offi ce” in th e phrase “malfeasanc e in offi ce” indi cate t hat the offense committ ed by t heGen. 117 121 pub lic official m ust b e in c onn ectio n w ith o ffic ial du ties. State v

. Jones , 407 P.2d at 57 3. See also People v. H ale , 42 Cal. R ptr. 533, 538 (Cal. App. 1965 ) (“ misco ndu ct in office” includ es on ly
wron gful acts in perform ance of the duties of o ffice); Williams v. City of Dover , 543 A.2d919 , 921-22 (N.H. 1988) (“malfeas ance” suffici ent to w arrant a pub lic employe e’s re moval from office must have dire ct rel ation to and connecti on with perfor mance of offici al duties); State v . Begyn , 167 A.2d 161, 168 ( N .J. Super. 1961) (“misconduct

in offi ce” includes misbehavi or by offic er in exercise of duties of his or

her offic e or while act ing under col or of his or he r office); 67 C .J.S. Officers §121 (1978) (t he misconduct

must be “in” office an d not at any other time ).

The requ ireme nt that th e act o r con duct re late to the duties of the public o ff

ice i s to ensur e that

an offici al is not removed for “malfeasanc e in offi ce” when the al leged wron gfu l act occur red wh ile the officer was acting in a private capaci ty as oppose d to his
or her ca pacity as a pub lic officer. SeeMads en v . Brown , 701 P.2d 1086, 1091 (U tah 1 985 ). “The conduct which wil l warrant removal of an officer

must be such as affecthis per formance of his duties as an officer and not as suc h affects his chara cter as a private ind ivid ual.” Clark v. Weeks , 414 F. Sup p. 703 , 7 08 ( N. D. Ill. 1976). See also St

anl ey v . Jones , 2 So. 2d 45, 51 (La. 1941) ( misconduct suffici ent to just ify

a removal must

be misconduct

in the c onduct of office, an d n ot m erely p erso nal m isbe hav ior). Accord, St ate v. Jones , 407 P.2d at 573- 74. But see A ttorney Ge nera l v. Tufts , 131 N.E. 573, 575 (Mass. 1921) (wrongs committed out side of di stri ct attorney’s offic ial duties , includ ing tho se acts committed a s private citi zen, could be co nside red in determ ining h is fitness to ho ld pub lic office).

An act or cond uct unrelated to the public official’s duties, even if it i s a viol ation of th e cr imi nal law , does not am oun t to “malfeasanc e in office.” In Williams v. Dover , 543 A. 2d 9 19 ( N. H. 1988), for example, a member of the plann ing b oard , on be half o f his employer, inst alle d a driveway and performedother cons truction on his employe r’s pr oper ty without obt aining pe rmits . While t he planning boar d m emb er’s co ndu ct ma y have b een c rimina l, it did not directly relat e to perf

o rmance o f his duties as plan ning bo ard
mem ber. 543 A.2 d at 9 22. See a lso Wilson v. C oun cil of Cit y of Highland

Park , 278 N.W. 778 (Mich. 1938) ( municipalcouncil man could not be removedfrom office for “misconduct

in offi ce” solely
on ground that

he was a member of a sec ret s ociety of a pol iti cal122 [82 O p. Att’y

3 If a r e moval statute provides for removal for commission of a crime, violation of the law would be suffici ent for removal even if the criminal conduct d

id not rela te to the official’s duti es. 67 C.J.S. Officers §125. nature, because membership in the organizat ion did not relate to h is duties). 3

“Malfeasance in offic e” is no t limited, h ow ever, to breaches of the speci fical ly

defined dut ies of offi ce:
There is a range of

conduct that can occur wh ile an officer

is acting under

color of office, but outsid e any sp ecifie d o ffici al duty as defined by statu te or or dinance tha t suff iciently relates to the duti es of offic e so as to taint t

he office itself or es t a blish th at a parti cular

offic er is un fit to ret ain the pub lic trust. The range of conduct is i ncluded i n the commonl y und erst ood meaning o f malfeasance in offi ce.
Madsen v. Bro wn , 701 P.2d at 1091. Thus, the questi on whether the alle ged misconduct oc curredwhile the public of fici al was acting in the public, as opposed t o the pri vate, is t o be decided by the tri er of facts based on the e vidence, not merel y on t he eviden ce as to t

he spec ific duties as creat ed b y statu te or ord inan ce. Id. See also M cQ uilla n, Municipal Corporations §12.237.

One M arylan d ca se, Ch este r v. St ate , refl ects an e xample of misconduct

in office by a f

orm of b la tan t corr

uption. A clerk of court dem ande d po litic al c ontribu tions f rom subo rdinate s, on p ain of dischar ge i f they

fail ed to pay

up. 32 Md. App. at 609- 10. Misconduct or malfe asan ce in offi ce need not i nvolve offi cial corrupt ion, how ever; it ca n also take th e form of a g ross fa il u re to meet expect ed standards of behavior in the of fice.

In Resetar v. State Board o f Ed uca tion , the C ourt o f A ppea ls held that a teacher’s use of a raci al epi thet in refe rring to a stud ent, with in the hear ing of o ther stu dents and teacher s, was “mis conduct in office. ” 284 Md. at 562. Opini ng that t he teach er’s conduct must bear upon his fitne ss to t each, t he Court st at ed tha t t he S tateGen. 117 123

Board of Educati on could properly conclude t

hat the remark of

the te ach er might undermi ne his fut ure cla ssroom perfor

mance and
over all impa ct on h is stud ents

. 284 M d. at 561. Th us, the teacher’s conductrelated to his dut ies. Id. Likewise, in Da ugh erty v. E llis , 97 S.E.2d33 (W.Va. 195 6), a co unty com missio ner so ld pro perty that
was held by

the county cour

t for t he b enefit of the coun ty and its citizens. Concluding that the county commissioner

committed “malfeasanc e in offi ce,” t he West Virgini a Supreme Court sai d:

It was the plain duty

of the defen dant , as a co mmissioner

of th e co unt y cou rt an d ... t h e repres entat ive of the peopl e of t he co unty, to
exerc ise du e dilige nce a nd re ason able c are to protect and preser

ve the prope rty

held by the
coun tycourt aga inst

loss an d in

jury and to safegua rd the ri ghts of t he cou n ty and its citi zens and in habita nts in suc h pr ope rty. The defendantfai led to pe rform thi s duty , but inst ead violat ed it by

atte mpting t o make final disposi tionof the livestoc k w ith o ut auth ority at a price which was substantially l ess than the value of o nly a part o f it.

97 S.E. 2d at

42. Other exam ples i nclude Robbins v. Co mm onw ealth , 22 S.W.2d 440 ( Ky. 1929) (iss uance of a warrant of arres t by a judge k now ing that there was n o groun d for w arrant); People v. Peck , 1 38 N .Y . 3 86 ( N. Y. 1893) (removal and destr uction of o fficial re cord s); Bald win v . State , 11 Ohio St. 681 (1860) (subs tituti on of a fa lse subpoe na for a true one); and Madsen v. Bro wn , 701 P.2d 1086 (Utah 198 5) (participation by mayor i n the killin g of fou r do gs a nd r em ova l of c arca sses fro m h is pro per ty).

III

Conclusion

In summary, it i s our opini on that r emoval for“ma lfeasa nce in office” under Arti cle 66B, §3. 02(a) r equires that t he acti ons or conductof the pl anning commissi on member have a dir ectrelation to the perf

ormance of offic ial duties an d be of a substantial nature124 [82 O p. Att’y

4 This conclusionaddresses only the removal of a public officer for malfeasanceor misconduct in office. We arenot addressingother issues (for example, the grounds for removing a public employee). directly affe cting th e pub lic inte rest , al beit not necessarily

a violation of th e c ri mi na l l aw. 4
J. Joseph C urran, Jr. AttorneyGeneral

Kim berly Smith W ard Assist ant Attorney General

Jack Sch wa rtz Chief Counsel Opinions and Advic e